California has HIV criminalization laws that are not good for public health
by Shannon Weber
Amidst fear, and with limited medical information about HIV, in 1988 California passed laws criminalizing the behavior of people living with HIV. These HIV criminalization laws have been counterproductive for individuals and public health – creating deep mistrust of public health systems.
Decades of HIV criminalization have reinforced, if not created, HIV-related stigma. Mistrust and stigma become disincentives for people to choose to get an HIV test, disclose their HIV status, and to engage in HIV prevention services or HIV care. This is bad for individual health, for California, and for public health. We have an opportunity to do better.
At our HIVE clinic, the HIV specialty prenatal care clinic based at Zuckerberg San Francisco General Hospital, the ripple effects from HIV criminalization laws take several forms. For example, there are pregnant women who fear accepting a routine HIV test because they are concerned about retaliation from a sexual partner. They may also be concerned about how an HIV diagnosis might affect their housing or work. A woman living with HIV may be afraid to disclose her status to her partner for fear of retribution or, too often, violence.
When HIV status can be used as coercion, the threat of legal activity (whether or not it is followed through with) is real. These real consequences push people and their stories underground where they are overshadowed by fear. This fear is too often paralyzing, keeping people living with HIV from staying engaged in care. This is not good for people, not good for California, and not good for public health.
Current California law is not based in fact.
We now know people living with HIV who are diagnosed and linked to care can live normal, healthy lives. In fact, the best thing each one of us can do is know our HIV status. Our laws should support such proactive behavior – it's good public health.
We know HIV treatment also works as prevention. Data from two large clinical trials is clear – people living with HIV who have an undetectable viral load do not transmit HIV to their sexual partners. The Prevention Access Campaign aims to popularize the adage "undetectable = uninfectious," demanding the media and medical providers accurately depict the science of HIV transmission. HIV is not a risk if it is treated; HIV is not a crime.
The power of "treatment as prevention" (commonly referred to as "TasP" in the HIV education field) was first evident in our perinatal HIV work. Did you know all San Franciscan babies born since 2004 have been free of HIV? Yes, all! In fact, the Centers for Disease Control and Prevention has proposed a plan to eliminate perinatal HIV transmission in the U.S. This is the power of HIV medications to both keep the mom healthy and prevent HIV transmission to her infant.
HIV treatment works. HIV treatment also works as prevention. Our laws should accurately reflect the science behind HIV transmission. This is good public health.
In addition to advances in HIV treatment, HIV prevention methods have expanded with the 2012 Federal Drug Administration approval of pre-exposure prophylaxis (PrEP). This one-pill-once-a-day method puts HIV prevention in the hands of HIV-negative people. PrEP is a game changer in HIV prevention, radically shifting our conversations with one another and within public health. In addition to male and female condoms, testing for sexually transmitted infections, HIV testing, and partnership agreements, PrEP provides an additional and powerful tool for user-controlled HIV prevention. PrEP dramatically shifts the public health landscape and the responsibility for HIV prevention. This shift puts us on track for ending HIV transmission in cities such as San Francisco and New York where PrEP access has been massively scaled up.
All of these interventions begin with knowing your HIV status. If our current California laws criminalize an HIV diagnosis, where does one begin? The reality is, as HIV science has advanced, our California HIV criminalization laws have become increasingly, if not embarrassingly, obsolete. The only role these outdated laws serve is to further marginalize people. HIV criminalization laws have disproportionately impacted communities of color, women, and women of trans experience who have been targeted for prosecution. Importantly, PrEP and HIV treatment are less frequently used by women, including women of trans experience, and people of color in California partly because they have more concerns about stigma and criminalization. This is counterintuitive to good public health.
In our clinics, where we carefully base our work on the most current evidence, we confidently tell people living with HIV and affected by HIV, "You can have the sex life you want. You can have the family you want." California laws should reflect the same science. It's good public health.
On February 6, state Senator Scott Wiener (D-San Francisco) and Assemblyman Todd Gloria (D-San Diego) introduced SB 239 (http://www.eqca.org/hivdecrim/) – historic legislation aimed to modernize California's outdated HIV criminalization laws, putting HIV on par with other communicable diseases and requiring an intended transmission for prosecution.
The proposed legislative updates are good news for those of us who live or love with HIV. It's also good news for public health. It's good news for California, where we pride ourselves on innovation based in science and inclusion.
It's time for California's outdated laws to catch up with the science.
HIV is not a crime.